Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-22-2004
Jashanica v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2027
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2027
___________
AGIM JASHANICA;
ARDITA SYLEJMANI,
Petitioners
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
On Petition for Review of a Decision by the
Board of Immigration Appeals
(No. A77-544-131 and No. A77-544-132)
___________
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2004
Before: NYGAARD and GARTH, Circuit Judges.
and POLLAK,* District Judge.
*Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
(Filed December 22, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Agim Jashanica and Ardita Sylejmani (“Petitioners”) petition this Court for
review of a final order of removal by the Board of Immigration Appeals. We have
jurisdiction pursuant to 8 U.S.C. § 1252 and will deny the petition.
I.
Petitioners are ethnic Albanian natives of Kosovo. On February 10, 1999
they entered the United States without valid entry documents and for that reason were
charged as removable by the former-INS. Petitioners conceded removability but sought
asylum, withholding of removal, and protection under the Convention Against Torture,
alleging that, because of their Muslim faith, they were persecuted by Serbs from 1996 to
1998.
In support of their claim, Sylejmani testified before the Immigration Judge
that the Serbian army murdered her father and Jashanica testified that he was beaten by
the Serbian police. Finding Petitioners not credible because of the lack of corroboration
concerning the murder of Sylejmani’s father, the Immigration Judge denied their claims
for relief and ordered their removal from the United States. Petitioners did eventually
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obtain what purported to be a death certificate for Sylejmani’s father and subsequently
appealed to the Board by filing a motion to reopen and remand based on that newly-
acquired piece of evidence. On March 12, 2003, the Board denied Petitioners’ motion
and dismissed their appeal. It held that even if Petitioners had credibly established a
claim of past persecution, due to changed country conditions, they no longer possessed a
well-founded fear of persecution. In the absence of such fear, the Board explained,
Petitioners were required to demonstrate that they were entitled to a humanitarian grant of
asylum under 8 C.F.R. § 208.13(b)(1)(iii). The Board found Petitioners had not done so
and rejected their claims for relief. This petition followed.
II.
Whether Petitioners are statutorily eligible for asylum is a question of fact,
which we review under the substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002). Under this standard, we uphold the findings of the Board if they are
“supported by reasonable, substantial, and probative evidence on the record considered as
a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quotation omitted). We
reverse those findings only when “the evidence not only supports a contrary conclusion,
but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483–84 (3d Cir. 2001) (citing Elias-
Zacarias, 504 U.S. at 481). Similarly, we will disturb the discretionary decisions of the
Board only if they are “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004).
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III.
The Attorney General may grant asylum to those qualifying as refugees.
Abdille, 242 F.3d at 482 (citing 8 U.S.C. § 1158(b)(1)). Refugees are individuals who are
unwilling or unable to return to their home country “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An applicant
who demonstrates past persecution is entitled to a rebuttable presumption of a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). That presumption is
rebutted and a grant of asylum generally will be denied when the government proves there
has been a “fundamental change in circumstances” in the applicant’s country such that the
applicant no longer has a well-founded fear of persecution there. Id. Even in the event of
rebuttal, however, the Board may still award a humanitarian grant of asylum in its
discretion if the applicant demonstrates either “compelling reasons for being unwilling or
unable to return to the country arising out of the severity of the past persecution” or “a
reasonable possibility that he or she may suffer other serious harm upon removal to that
country.” Id. at § 208.13(b)(1)(iii); see In re Chen, 20 I. & N. Dec. 16 (BIA 1989)
(“However, there may be cases where the favorable exercise of discretion is warranted for
humanitarian reasons even if there is little likelihood of future persecution.”). 1
1. As Petitioners have not appealed the Board’s denial of withholding of removal
and protection under the Convention Against Torture, we need not address those issues.
4
The Board found that even if Petitioners had established past persecution,
any presumption of a well-founded fear of future persecution had been rebutted because
of fundamental changes in Kosovo. Petitioners do not challenge this finding of fact and
we hold it to be supported by substantial evidence. The Board took administrative notice
of the Country Report on Human Rights Practices in Kosovo published by the
Department of State, which notes that persecution by Serbs in Kosovo has ceased, as the
United Nations is now in control. This report, and the fact that Petitioners have family
remaining in Kosovo without incident, provide substantial evidence to uphold the Board’s
finding that the presumption of a well-founded fear has been rebutted.
Finding no well-founded fear of persecution, the Board declined to award a
humanitarian grant of asylum as a matter of discretion. It is this exercise of discretion
that Petitioners challenge. The Board held that while the one-time beating of Jashanica
and the murder of Sylejmani’s father may have constituted persecution, those incidents
were not compelling enough to merit asylum in the absence of a well-founded fear of
persecution. See 8 C.F.R. § 208.13(b)(1)(iii)(A). It held, moreover, that Petitioners failed
to show a reasonable possibility that they would suffer other serious harm if returned to
Kosovo. See 8 C.F.R. § 208.13(b)(1)(iii)(B). For these reasons, the Board declined to
award Petitioners humanitarian asylum. Regardless of whether we agree with the Board’s
exercise of its discretion, given existing case law concerning the humanitarian grant of
asylum, we cannot say the Board’s decision was an abuse of its discretion. See In re
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Chen, 20 I. & N. Dec. at 16 (granting asylum for humanitarian reasons where applicant
had been beaten, detained, and forced into hard labor from the age of eight, leaving him
with permanent physical and emotional wounds).
IV.
We are not unsympathetic to Petitioners’ plight. Nevertheless, the Board
did not abuse its discretion by denying their request for a humanitarian grant of asylum.
We will deny the petition for review.
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